A subpoena is an order to attend court. It can be issued by a judge or court clerk, a prosecutor or defense attorney, or an investigator for the DA or Public Defender. California Penal Code §1326

What is a subpoena duces tecum?

A subpoena duces tecum orders you to attend court AND bring documents or other evidence. Read the subpoena carefully; you might not have to attend court if it says you may send the documents directly to the court, in a sealed envelope, along with a declaration under penalty of perjury describing how the records were prepared. Again, the instructions will be on the subpoena, so read them carefully. DO NOT send the documents directly to the person who issued the subpoena; they should be sent to the court, at the address specified on the subpoena.

How is a subpoena served?

Subpoenas are most commonly handed to the person being served. Service can be made by a police officer, a defense investigator, or almost any other adult who is not a party to the case. If the witness is a minor, the subpoena is to be served on the child's parent or guardian; witnesses who are 12 or older also receive a copy of the subpoena.

I receive a subpoena in the mail; have I been served?

A subpoena may be sent by mail. However, it has NOT been legally served unless the witness 1) contacts the person who issued the subpoena by phone, mail or in person, and 2) provides his or her date of birth, and a California Drivers License or state-issued ID card number, as identification. You are not legally required to contact the sender to provide this information. California Penal Code 1328d.

What if I receive a subpoena that says I have to appear somewhere other than a court?

Some District Attorneys have issued subpoenas ordering witnesses to report to the DA's office, either before court or on a day when the case is not even being heard. This is not authorized by California law in a criminal case. (In civil cases, a subpoena CAN be issued for a deposition, which is a proceeding where lawyers from both sides can question a witness without a judge.) If you receive a subpoena ordering you to appear at any place other than court, report it to the court immediately.

I've been subpoenaed for a trial that may last a week. Do I have to sit around the court the whole time?

Contact the person who issued the subpoena. They may agree to place you on standby, where you give them telephone numbers where you can be reached and agree to be in court within a certain period of time after they call you. If you make this kind of arrangement and fail to show up when notified, it is just as if you failed to obey the subpoena altogether. (At the very least, they probably won't agree to accommodate you again, so you're stuck sitting in the courthouse hallway until they call you as a witness.) California Penal Code §1331.5

The subpoena says I have to go to court hundreds of miles away!

A judge has to approve a subpoena for a witness who lives outside the county, unless the court is within 150 miles of his or her home. The judge's approval is not needed for a subpoena duces tecum (defined above) where the custodian of records is not required to personally appear and can send the records to the court. California Penal Code §1330.

What happens if I don't obey a subpoena?

If you don't go to court as ordered, the judge may issue a "body attachment," which is essentially an arrest warrant that lets a police officer take you into custody. You can then be held in jail until the case is returned to court. If you refuse to answer questions, the judge may also hold you in contempt and remand you into custody until you agree to testify. NOTE; There are exceptions for victims of domestic violence and sexual assaults, discussed below. California Code of Civil Procedure §1219.

I am the victim of a sexual assault. Am I required to testify?

You must come to court if you are served with a subpoena, but the judge cannot put you in jail if you refuse to testify about the sexual assault. This applies to victims of acts described in Penal Code Sections 261 (rape), 262 (rape of a spouse), 264.1 (rape by multiple perpetrators), 285 (incest), 286 (sodomy by force or with a minor), 288 (child molestation, or assault of a disabled person by a caretaker), 288a (oral copulation of a child, or an adult without consent), or 289 (sexual penetration by a foreign object of a child, or an adult without consent). California Code of Civil Procedure §1219(b).

I am the victim of domestic violence. Do I have to testify?

You must come to court if you are served with a subpoena, but the judge cannot put you in jail if you refuse to testify as the victim of alleged domestic violence. California Code of Civil Procedure §1219(b).

What if my testimony may get me into trouble?

Sometimes a person's testimony may get them in trouble. For instance, it might reveal that you had committed a crime or that you violated terms of probation. If that happens, you should inform the judge that you feel your testimony may incriminate you, and that you want to have a lawyer appointed before you start asking questions. Even if the prosecutor or defense attorney who issued the subpoena doesn't plan to ask any incriminating questions, the other side will have an opportunity to cross examine you and will try to impeach your testimony with information that tends to show you are untruthful, biased or motivated to give false testimony.

Final Thoughts

This legal guide is a general discussion of California law, not a substitute for legal advice from an attorney on the specific facts of your case. It is a discussion of legal principles, and is not designed to tell you whether you should, or should not, testify in any particular case. Please be sure to talk to a lawyer about the specific circumstances of your subpoena.

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